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Friend of the Court
By Lisa Kemler
Friend of the Court columns.
Does failure to investigate available mitigating evidence for
possible use in penalty phase of death penalty case constitute
ineffective assistance of counsel?
In Wiggins v. Smith, U.S., No. 02-311, cert. granted 11/18/02,
a death penalty case, Kevin Wiggins was charged in Maryland state court
with murder and robbery of an elderly woman, as well as burglary and
theft. The defense opted for a bench trial on the issue of guilt
believing that “Baltimore County juries are too ‘bent towards guilt’ and
‘death oriented.’” (Petitioner’s Br. at 4). The judge convicted Wiggins
of murder, robbery and theft. Although there was no direct evidence of
Wiggins’ participation in the murder or robbery, he had possession of
the victim’s car and had used her credit cards subsequent to her death.
In addition, Wiggins had worked as a painter in the victim’s apartment
complex and had been seen near her apartment building on the afternoon
before her death. The trial judge had disc
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